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Sample Business ContractsHome: Sample Business Contracts:
EXECUTION VERSION
CONFIDENTIAL
IP TELEPHONY SERVICES DISTRIBUTION AND INTERACTIVE MARKETING AGREEMENT
This IP Telephony Services Distribution and Interactive Marketing
Agreement (this "Agreement"), dated as of November 19, 1999 (the "Effective
Date"), is between AOL, Inc., a Delaware corporation, with offices at 22000 AOL
Way, Dulles, Virginia 20166 ("AOL"), and Net2Phone, Inc. ("N2P"), a Delaware
corporation, with offices at 171 Main Street, Hackensack, NJ 07601. AOL and N2P
may be referred to individually as a "Party" and collectively as the "Parties."
INTRODUCTION
AOL is a provider of online communication services, including the AIM
Service. N2P is a provider of various IP Telephony services. The Parties wish
for N2P to develop and provide to AOL a customized version of certain N2P
Services that can be distributed through the AIM Service so as to enable AIM
Members to send and receive free, or low cost, Internet-enabled telephony
communications. This relationship is further described below and is subject to
the terms and conditions set forth in this Agreement. Defined terms used but not
defined in the body of the Agreement shall have the meanings ascribed to such
terms in Exhibit A hereto.
TERMS
1. AIM IP TELEPHONY SERVICES GENERALLY
1.1 Description of AIM IP Telephony Services. The N2P Services to
be offered collectively as the customized AIM IP Telephony
Services shall be comprised of the following:
1.1.1. PC-to-Fax Service. A PC-to-fax calling service
whereby AIM Members may send faxes from their PCs to a
facsimile machine of a third party.
1.1.2 Fax-to-PC Service. A fax-to-PC calling service
whereby AIM Members may receive faxes through their PCs from a
facsimile machine of a third party.
1.1.3. PC-to-Phone Service. A PC-to-telephone calling
service, which shall allow any AIM Member to originate a voice
conversation on an Internet-enabled PC (through use of the AOL
IP Telephony Software as distributed through the AIM Service
in accordance with the terms of this Agreement) and terminate
such conversation on a telephone located virtually anywhere in
the world (the "PC-to-Phone Service").
1.1.4. Phone-to-PC Service. A telephone-to-PC calling
service, which shall allow any AIM Member to originate a voice
conversation from a telephone and terminate such voice
conversation on an Internet-enabled PC (through use of the AOL
IP Telephony Software as distributed through the AIM Service
in accordance with the terms of this Agreement) (the
"Phone-to-PC Service"). Such calls shall be initiated by any
such AIM Member by dialing a local and/or toll-free N2P access
number (i.e., a local POP) and entering any such AIM Member's
account number and PIN, and then the number of the receiving
party. The Phone-to-PC Service generally shall enable
telephone conversations with any AIM Member online even if
such AIM Member is also using his or her only telephone line
for online access.
1.1.5. Phone-to-Phone Calling Card Service. A
telephone-to-telephone calling card service using IP
Telephony, which shall allow any AIM Member to call a third
party
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EXECUTION VERSION
by dialing a local and/or toll-free N2P access number (i.e.,
local POP) and entering the AIM Member's account number and
PIN, and then dialing the phone number of the person whom such
AIM Member is calling (the "PTP Calling Card Service"). The
PTP Calling Card Service shall use the AIM Card (as defined in
Section 4.3). For the avoidance of doubt, the Parties
acknowledge that the PTP Calling Card Service shall include
fax-to-fax service.
1.1.6. Conference Calling Service. A conference
calling service, which shall allow conference calls initiated
from a combination of phones and/or Internet-enabled PCs (the
"Conference Calling Service").
1.1.7. Fax-to-Fax Service. A fax-to-fax service using
IP Telephony which shall allow any AIM Member to fax a third
party by dialing a local and/or toll-free N2P access number
(i.e., local POP) and entering the AIM Member's account number
and PIN, and then dialing the fax number of the person to whom
such AIM Member is sending a fax, which uses the AIM Card,
pursuant to Section 1.1.5.
1.1.8. Optional Services.
(a) AOL shall provide N2P with a [****] with
respect to the provision of the following additional
services as additional AIM IP Telephony Services:
[****] the AIM Client or the Worldwide Web; (iv)
[****] (the [****] aforementioned services,
collectively, the "Optional Services" and each, an
"Optional Service"). [****]
(b) At any point during the Term, AOL shall
have the option, but not the obligation, in AOL's
sole discretion to include the PC-to-PC Service as
part of the AIM IP Telephony Services. In such event,
AOL agrees that N2P shall provide such PC-to-PC
service, and such PC-to-PC Service shall constitute
an additional Core Premium Service, according to the
terms and conditions set forth in this Agreement
pursuant to such Core Premium Services.
Such PC to PC Service shall be provided to AIM
Members without a per minute or other similar charge.
(c) In addition to the foregoing, if during
Year One or Year Two AOL develops and implements
third party AIM talk functionality into a directory
for AIM Members within the AIM Service, and such
directory is fully-owned or controlled by AOL and
does not link to any third party site (excluding any
third party data source), and AOL elects, in its sole
discretion, to include IP Telephony Services in such
directory (the "Click to Talk Service"), then N2P
shall provide such Click To Talk Service, and such
Click To Talk Service shall constitute an additional
Core Premium Service, according to the terms and
conditions set forth in this Agreement, at no charge
to AOL or AIM Members.
(d) Notwithstanding the foregoing, the
provision of such PC to PC Service or any other Core
Premium Service by N2P shall not be designed to
compromise the [****].
N2P acknowledges, for the avoidance of doubt, that the right to access
the AIM IP Telephony Services initially [****] to AIM Members, provided
that N2P reserves the right [****] consistent with its obligations
under Sections 3.1 and 3.3. In addition to the foregoing services, N2P
shall (i) provide APIs, or SDKs, as the case may be, and (ii) to the
extent commercially reasonable (a) provide connection for AOL to N2P's
local equipment and (b) assist finding space for AOL and its Affiliates
to locate equipment along with or near N2P's local equipment to enable
AOL and its partners to link into aspects or features of the AOL IP
Telephony System to provide related services (e.g., voice messaging);
provided, however, that any such arrangement shall be subject
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to the mutual agreement of the Parties as to the reasonable terms and
conditions for such arrangement.
1.2 Performance. Each Party shall cause all aspects of the AIM IP
Telephony Services within its control, including customer
service and billing, network coverage and performance and
fraud detection, to comply in all material respects with the
applicable standards set forth on Exhibits B, C and D.
1.3 Launch Cutoff
1.3.1 Cutoff Dates. N2P shall cause (i) the PTP
Calling Card Service to be fully prepared for launch on the
AIM Service within [****] following the Effective Date; and
(ii) each of the Secondary AIM IP Telephony Services to be
fully prepared for launch on the AIM Service by the respective
cutoff dates therefor set forth on Exhibit I to this Agreement
(each such date in clauses (i) and (ii) above, a "Cutoff
Date," and collectively, the "Cutoff Dates"). If any Core
Premium Service is not fully prepared for launch by the
applicable Cutoff Date in any particular country, AOL shall
have the right to terminate the exclusivity (as set forth in
Section 9 of this Agreement) with respect to such Core Premium
Service in that country, and thereby enter into an agreement
with any third party (including a N2P Competitor) with respect
to such Core Premium Service in such country(s); provided,
however, that in the event any such Core Premium Service is
not fully prepared for launch by the applicable Cutoff Date in
the United States, then AOL shall have the right to terminate
the exclusivity worldwide (as set forth in Section 9 of this
Agreement) with respect to such Core Premium Service(s) that
is or are not fully prepared for launch by the applicable
Cutoff Date , and thereby enter into an agreement with any
third party (including a N2P Competitor) with respect to such
Core Premium Service(s).
1.3.2 AOL Assistance. To the extent that it shall be
reasonably necessary for AOL to undertake any activities
within AOL's reasonable control (including providing
information or materials) reasonably requested by N2P in order
to enable N2P to fulfill its development and deployment
obligations and meet any Cutoff Date, AOL shall undertake any
such activities in a timely manner.
1.3.3 Excusable Delays. Each applicable Cutoff Date
and N2P's obligation to provide the Core Premium Services
thereafter (together with any rights of AOL related thereto,
including, without limitation, any right to terminate this
Agreement or any exclusivity hereunder) shall be deemed
extended, subject to the remainder of this Section 1.3.3, to
the extent (and only for the duration in which): (i) AOL fails
to undertake the reasonably requested and reasonably necessary
activities described in Section 1.3.2 with respect to any Core
Premium Service, and N2P has provided AOL with reasonable
informal notice (e.g., by e-mail message to the AOL Technical
Liaison or through discussion at the quarterly meetings
described in Section 2.8) of such failure and of its causal
effect on N2P's ability to meet any such Cutoff Date (an "AOL
Delay"); (ii) there is (or is reasonably expected to be) a
U.S. or other regulation which would prevent N2P from offering
a Core Premium Service (or which such regulation would make it
commercially unreasonable for N2P to offer any such Core
Premium Service (in such country)) (collectively, a
"Regulatory Event"); or (iii) any other Force Majeure Event
occurs. The Parties, through the Management Committee, shall
determine in good faith the period by which the Cutoff Date is
to be extended (or any other obligations or criteria that are
to be affected), if at all, by any of the events described in
this Section 1.3.3; provided, however, that, unless otherwise
agreed by the Parties, the extension of any Cutoff Date
resulting from any Regulatory Event or Force Majeure Event
shall not exceed [****] in the aggregate. In the event that a
Regulatory Event or Force Majeure Event affects N2P
Competitors generally with respect to the provision of the PTP
Calling Card Service, then AOL shall discuss with N2P in good
faith extending the Cutoff Date beyond such [****] period. For
the avoidance of doubt, any extension of a Cutoff Date
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EXECUTION VERSION
due to an AOL Delay shall be as mutually agreed upon in
writing by the Parties.
1.4 Launch Dates. The Parties shall record the date on which each
AIM IP Telephony Service is launched (each such date, a
"Launch Date") in a written instrument signed by both Parties
promptly following any such Launch Date; provided, however,
that in the event that the Parties cannot agree as to the
definitive Launch Date with respect to a particular AIM IP
Telephony Service, the Parties shall submit such Dispute to
the dispute resolution provisions set forth in Section 17 of
this Agreement.
2. DEVELOPMENT OBLIGATIONS
2.1 Initial Version. The initial version of each of the AIM IP
Telephony Services shall be developed by N2P, by customizing
each of the existing N2P Services as set forth in Sections
1.1.1 through 1.1.7 to conform to the product specifications
set forth in Exhibit B to this Agreement (collectively,
together with such modifications thereto or any such
additional specifications as may be agreed to in writing by
the Parties after the Effective Date, the "Specifications").
As part of such customization, the N2P Services shall be
developed to function in an integrated manner with the
operation of the AIM Client to the extent set forth in the
Specifications or elsewhere in this Agreement (including, but
not limited to, the provision of SDKs to AOL in connection
with Section 10.1.2). Without limiting the foregoing,
throughout the Term, N2P shall support on the AIM Service
(i.e., through integration of voice over IP ("VOIP")
applications) any AOL or third party communications platform
that AOL reasonably requests (i.e., considering the time
necessary for N2P to deliver and the technological
capabilities of N2P or its contractors) from N2P and/or adopts
for the AIM Service, including unified messaging, voice
messaging, audio, video, etc. (the "Platform Support").
[****]. N2P shall cooperate with AOL in documenting and
perfecting all of AOL's rights with respect to such
development, including executing any necessary assignments,
applications or documentation with respect to such
development. Such Platform Support shall include, without
limitation, providing AOL with APIs, SDKs, or other necessary
tool kits to Seamlessly Integrate the AIM IP Telephony
Service(s) into such other AOL platforms and/or communications
functionality as designated by AOL, and shall not constitute
an Additional AOL Modification pursuant to Section 2.3 below.
Notwithstanding the foregoing, in the event that N2P fails to
provide AOL with such Platform Support as set forth in this
Section 2.1, then N2P shall provide AOL with any and all
functionality necessary for AOL (or its contractors) to
perform such Platform Support, in accordance with the Limited
Source Code License set forth in Section 10.2.2.
To the extent that any material conflict exists between (i)
Exhibit B to this Agreement and (ii) the provisions of the
principal body of this Agreement, the principal body of this
Agreement (i.e., Sections 1 through 18 hereof) shall govern.
2.2 Updates.
2.2.1 Notification of Updates. If, during the Term,
N2P develops any Update of any N2P Service that is generally
commercially available to users of the N2P Services, N2P
shall, in each such case, (i) promptly notify AOL of such
Update and (ii) promptly (i.e., in the shortest commercially
reasonable time period) include such Update (provided that
such Update complies with the Specifications or the terms of
this Agreement) in the applicable AIM IP Telephony Service.
2.2.2 No Notification Required. N2P shall not be
obligated to notify AOL of or to provide to AOL any
modification, improvement, addition, deletion, feature or
functionality
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EXECUTION VERSION
of the N2P Services provided by N2P to another customer if
such modification, improvement, addition, deletion, feature or
functionality is subject to contractual restrictions that
would prohibit N2P from providing it to AOL hereunder. For the
avoidance of doubt, the Parties acknowledge that N2P shall not
be required to notify AOL of or provide to AOL any
modification, improvement, addition, deletion, feature or
functionality of any Optional Service, Expanded Service or
other IP Telephony Service (apart from any Core Premium
Service) unless the Parties have agreed to the provision by
N2P to AIM Members of any such service pursuant to the terms
of this Agreement.
2.2.3 Disagreement. In the event of any disagreement
between the Parties regarding the provision by N2P of any such
Updates to AOL (e.g., as to whether any such Update is
generally commercially available, the length of the time
period in which any such Update is to be implemented, etc.),
such disagreement shall be submitted to the Management
Committee pursuant to Section 17 of this Agreement.
2.3 Additional AOL Modifications.
2.3.1 Definition. AOL may in its discretion, from
time to time during the Initial Term, request that N2P, to the
extent commercially reasonable, (i) add new functionality or
features to any AIM IP Telephony Service(s), (ii) modify
elements related to the AOL GUI (but not elements of the AOL
GUI itself), and/or (iii) modify the AIM IP Telephony Services
in connection with modifications of the AIM Client and AIM
Service (which modifications shall be subject to Section 2.7
and which modifications AOL estimates will occur at least
twice a year), (each of (i), (ii) and (iii) above, an
"Additional AOL Modification"). The Parties agree that any
features, functionality, additions, deletions or other
modifications necessary to be carried out by N2P in order for
N2P to comply with its obligations under Section 3 of this
Agreement (collectively, the "Necessary Modifications") shall
not constitute Additional AOL Modifications and that [****].
2.3.2 Request for Non-Substantial Modification. In
the event that AOL requests Additional AOL Modifications that
N2P reasonably believes would not involve (i) a substantial
cost or expense to N2P (i.e., [****] in the aggregate during
any Year of this Agreement) or (ii) a substantial commitment
of N2P personnel, N2P shall develop the Additional AOL
Modifications in cooperation with AOL on a schedule to be
mutually agreed upon by the Parties. Each Party shall allocate
development resources on a high priority basis to complete
such Additional AOL Modifications in accordance with such
schedule.
[****].
2.3.3 Request for Substantial Modification. In the
event that AOL requests an Additional AOL Modification that
N2P reasonably believes would involve a substantial cost or
expense to N2P, or a substantial commitment of N2P personnel,
the Parties shall negotiate in good faith regarding the
request for such Additional AOL Modification, including,
without limitation, the appropriate schedule for development
and deployment, rights to the results of the development,
interoperability requirements, and the relevant business terms
(e.g., amount of any payments for the development, the revenue
model for the features or functions, etc.). If and when the
Parties reach agreement on the terms and conditions for such
Additional AOL Modification, N2P shall develop the Additional
AOL Modification in cooperation with AOL, and each Party shall
allocate development resources on a high priority basis to
complete such Additional AOL Modification in accordance with
such schedule.
2.3.4 Commissioned Works. Notwithstanding the
foregoing, in the event that the Parties are unable to agree
as to the development or deployment of any Additional AOL
Modification in accordance with Section 2.3.3, AOL shall have
the right during the Initial
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EXECUTION VERSION
Term to require N2P to assist AOL in securing a mutually
agreed-upon third party to develop any such Additional AOL
Modifications for AOL; provided, however, that either N2P or
(at AOL's option) AOL may perform such development. In the
event that a third party is secured to perform such
development, N2P will use commercially reasonable efforts to
assist such third party in performing such development. Any
development by any such third parties shall not be considered
the responsibility of N2P, and such third parties shall not be
considered contractors of N2P. To the extent that portions of
such Additional AOL Modifications (including intellectual
property rights therein) are developed by N2P specifically for
AOL pursuant to this Section 2.3.4, such portions shall be
considered "Commissioned Works," but "Commissioned Works"
shall exclude, any software, modules, routines or subroutines,
documentation or other materials, and any methods, processes,
techniques or inventions, that were (i) developed by or for
N2P prior to such development for AOL or (ii) developed
independently by or for N2P (i.e., independent of the
development carried out for AOL under this Section 2.3.4 by
N2P). To the extent that (a) N2P develops any Commissioned
Works pursuant to this Section 2.3.4 without requiring that
AOL pay for such Commissioned Works (in cash or such other
consideration as may be agreed to by the Parties), then N2P
shall own all right, title and interest in and to such
Commissioned Works (provided, however, that in such case, AOL
shall have a fully paid-up, [****], non-exclusive,
non-transferable and worldwide license for the Term to use,
reproduce, directly and indirectly distribute, transmit,
display, perform, sublicense and adapt such Commissioned
Works), (b) [****] for any such Commissioned Works pursuant to
this Section 2.3.4, then AOL shall own all right, title and
interest in and to such Commissioned Works, and (c) the
Parties so agree, the Parties shall co-own all right, title
and interest in and to such Commissioned Works, which shall be
treated as Joint Work Product for purposes of this Agreement.
Each Party shall cooperate with the other Party in documenting
and perfecting all rights with respect to the Commissioned
Works, including executing any necessary assignments,
applications or other documentation with respect to the
Commissioned Works.
2.3.5 Disagreement. In the event that the Parties
disagree as to the development or deployment of any Additional
AOL Modification, including any disagreement as to the terms
and conditions for the development or deployment thereof, the
Parties shall submit such Dispute to the Management Committee
in accordance with the terms of Section 17 of this Agreement.
2.4 Expansion to Cover Other Services and Platforms of AOL.
2.4.1 Request by AOL to Encompass Expanded Service
Within an AOL Telephony Service. AOL may in its discretion,
from time to time during the Initial Term, seek to expand any
AIM IP Telephony Service(s) to provide service through any and
all platforms and services hereafter offered by AOL or an
Affiliate of AOL (other than the AIM Service) (the "Expanded
Services"). In such event, AOL may in its discretion request
that N2P develop or deploy or assist with the development or
deployment of any such Expanded Services. Upon the receipt of
any such request, and before any development or deployment of
any Expanded Services, the Parties shall negotiate in good
faith regarding the request for any such Expanded Services,
including, without limitation, with respect to the appropriate
schedule for any development and deployment, and the relevant
business terms (e.g., the amount of any payments for any
development, the revenue model for the Expanded Services,
etc.). If and when the Parties reach agreement on the terms
and conditions related to the development and deployment of
such Expanded Services, each Party shall allocate development
and deployment resources on a high priority basis towards the
development and deployment of an updated version of the
applicable AOL IP Telephony Software to support such Expanded
Services in accordance with the terms and conditions agreed
upon by the Parties.
2.4.2 Failure to Agree. In the event that the Parties
disagree as to the development or deployment of any Expanded
Service, including any disagreement as to
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EXECUTION VERSION
the terms and conditions for the development or deployment
thereof, the Parties shall submit such Dispute to the
Management Committee in accordance with the terms of Section
17 of this Agreement; provided, however, that in the event
that the Management Committee is unable to agree as to the
terms and conditions regarding such development and
deployment, such Expanded Service shall not constitute an AIM
IP Telephony Service for purposes of this Agreement, and N2P
shall not have any rights or obligations with respect to such
Expanded Service.
2.4.3 Agreement. Nonetheless, if the Parties agree to
add an Expanded Service to this Agreement, such Expanded
Service, for all purposes hereof, shall be considered part of
the AIM IP Telephony Services, and all rights and obligations
of AOL and N2P hereunder shall apply to such Expanded Service
and users of such services shall be considered AIM Members for
purposes of this Agreement. For purposes of calculating the
Revenue Share and the Revenue Threshold hereunder, any such
agreed-upon Expanded Service shall be aggregated with the AIM
IP Telephony Services as if only one service existed (unless
otherwise agreed upon by the Parties).
2.4.4 Migration. Throughout the Term, AOL shall
have the right, in its sole discretion, to require N2P,
[****], to migrate and/or route any and all voice over IP
traffic in connection with the PC-to-PC Service (as
applicable), the PC-to-Phone Service, or any and all other
Core Premium Services, as applicable, to servers, protocols,
or platforms in connection with standards designated by AOL,
provided that: (i) such migration shall not affect N2P's right
to revenues pursuant to Section 7 of this Agreement; and (ii)
the quality of the AIM IP Telephony Services is not materially
degraded below generally recognized industry standards
accepted by AOL for VOIP services, resulting solely from the
fault of AOL in connection with such migration. In such event,
N2P shall provide AOL, or any third party designated by AOL,
with a peering agreement from the AOL designated server(s) to
N2P's network, on terms to be mutually agreed to by the
Parties, in connection with any and all such traffic (e.g.,
for termination or pass-through purposes). AOL acknowledges
that N2P shall not be deemed in breach for its failure to meet
its performance obligations set forth in Sections 3.2 and 3.3
if such failure is due solely to N2P's compliance with the
requirements of this Section 2.4.4.
2.5 Delivery and Acceptance.
2.5.1 Initial Versions. Following the completion of
the development and internal testing of each initial version
of the Core Premium Services, N2P shall deliver each such
initial version to AOL for evaluation and acceptance in
accordance with the delivery dates set forth on Exhibit I
hereto. AOL shall have thirty (30) days following such
delivery by N2P to evaluate whether each such initial version
functions in accordance with the Specifications and without
any Severity 1 or Severity 2 Problems. If AOL reasonably
determines that any such initial version of any Core Premium
Service does not function in material conformity with the
Specifications and/or without Severity 1 or Severity 2
Problems, AOL may reject such version by providing N2P with
written notice within such thirty (30) day period specifying
in detail the reason for rejection. Any initial version of the
Core Premium Services that has not been so rejected within
such thirty (30) day period shall be deemed accepted. If AOL
rejects any initial version of any Core Premium Service, then
following such rejection, N2P shall use commercially
reasonable efforts to correct (as promptly as commercially
possible but in any case by the applicable Cutoff Date) in all
material respects, the deficiencies in such initial version
that were specified in AOL's notice of rejection. If the
deficiencies specified in any such AOL notice of rejection
have not been remedied in all material respects by such Cutoff
Date, AOL shall have the right to terminate the exclusivity
(as set forth in Section 9 of this Agreement) with respect to
such Core Premium Service and thereby enter into an agreement
with any third party (including a N2P Competitor) with respect
to such Core Premium Service.
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2.5.2 Subsequent Versions. Following the completion
of the development and internal testing of each subsequent
version (i.e., subsequent to the initial version) of any Core
Premium Service (or any initial version of any Optional
Service, Expanded Service or other IP Telephony service
mutually agreed upon by the Parties to be provided by N2P
hereunder) (each, a "Subsequent Version"), N2P shall deliver
each such Subsequent Version to AOL for evaluation and
acceptance. AOL shall have thirty (30) days following such
delivery by N2P to evaluate whether such Subsequent Version
functions in accordance with the Specifications and without
any Severity 1 or Severity 2 Problems. If AOL reasonably
determines that any such Subsequent Version does not function
in material conformity with the Specifications and without
Severity 1 or Severity 2 Problems, AOL may reject such
Subsequent Version by providing N2P with written notice within
such thirty (30) day period specifying in detail the reason
for rejection. Any Subsequent Version that has not been so
rejected within such thirty (30) day period shall be deemed
accepted.
2.5.3 Acceptance Process. The acceptance criteria set
forth in Sections 2.5.1 and Section 2.5.2 of this Agreement
shall not include as factors the Core AOL Obligations, and AOL
shall not withhold any such acceptance due to its failure to
comply with the Core AOL Obligations.
2.6 Assistance from AOL. AOL shall provide N2P with reasonable
consultative assistance in connection with the development
obligations of N2P as set forth in this Section 2. In
addition, during the Term, AOL agrees to notify N2P in advance
of any modifications and/or changes to the AIM Service that
AOL believes may result in incompatibility between the
Parties' respective systems or interruptions in the AIM IP
Telephony Services (including without limitation, network
configuration changes and system maintenance). The Parties
shall work together to resolve any such potential or actual
incompatibility, or interruptions, in connection with AOL's
implementation of any such change and/or modification.
2.7 Other Modifications. AOL reserves the right to redesign and/or
modify the organization, structure, "look and feel,"
navigation, features and other elements of the AIM Client, the
AIM Service and the AIM IP Telephony Services (subject to (i)
the technical limitations and design requirements of the N2P
Services and N2P System (which shall themselves remain subject
to the Specifications) and (ii) the requirement that such AIM
Service and AIM IP Telephony Services remain in compliance
with the terms and conditions of this Agreement. AOL shall
provide N2P with reasonable notice of any material proposed
redesign and/or modification in advance of developing such
redesign or modification, and the Parties shall consult in
good faith on how to avoid any adverse effect on the AOL
Telephony Services (including, without limitation, any adverse
effect on the functionality or performance thereof) as a
result of such redesign and/or modification. Such notice shall
be sufficiently in advance of the proposed redesign or
modification such that the Parties will have a reasonable
opportunity to complete the process, and avoid the adverse
effect on the AIM IP Telephony Services, as contemplated by
this Section 2.7.
2.8 Meetings. In furtherance of the rights and obligations of the
Parties under this Agreement, the Parties shall meet, in
person on a quarterly basis (the "Quarterly Meetings") and by
telephone on a monthly basis (the "Telephone Meetings"). With
respect to the four (4) Quarterly Meetings to take place
during each Year of the Initial Term, two (2) such Quarterly
Meetings shall take place in Virginia (at AOL headquarters or
such other location as mutually agreed upon by the Parties)
and the other two (2) such Quarterly Meetings shall take place
in the United States (at N2P headquarters or such other
location as mutually agreed upon by the Parties). The
Quarterly Meetings shall be used to discuss, inter alia,
long-term planning, strategic and development issues, and
marketplace and performance information regarding the
obligations and criteria applicable to the Parties hereunder
(including the obligations and criteria under Section
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EXECUTION VERSION
3), and shall be attended by the Technical Liaisons and
appropriate senior development and management personnel. The
Parties anticipate that the first such Quarterly Meeting shall
occur as promptly as possible following the Effective Date but
in no event later than two (2) months following the Effective
Date. The Telephone Meetings shall be used to discuss, among
other things, the activities and relationship contemplated by
this Agreement, including the proposed implementation and/or
progress of any Updates or Additional AOL Modifications,
changes to the operating standards set forth on Exhibit B,
Exhibit C or Exhibit D hereto, AOL Exclusive Offers to be
provided during the subsequent quarter, and the redesign or
modification of elements of the AIM Service or AIM IP
Telephony Services.
2.9 No Support for AOL Modifications. The Parties acknowledge that
any modifications or additions to the AIM IP Telephony
Services that are carried out by AOL (or carried out for AOL
by a third party not contracted or subcontracted by N2P) shall
not affect the determination of whether N2P has met its
obligations or the criteria set forth in Sections 1.3 or 3 of
this Agreement.
3. N2P PERFORMANCE
3.1 Pricing and Terms. [****]
3.2 Operating Standards.
3.2.1 Compliance. During the Term, N2P will cause the AIM IP
Telephony Services to comply in all material respects with the
standards set forth in each of Exhibit B, Exhibit C and
Exhibit D. To the extent standards are not established in
Exhibits B, C or D with respect to any aspect of the AIM IP
Telephony Services, N2P will use commercially reasonable
efforts to provide such aspect at a level of quality,
completeness or timeliness which meets or exceeds prevailing
standards in the IP Telephony industry. Without limiting the
generality of the foregoing, N2P will use commercially
reasonable efforts to provide all hardware, software,
telecommunications lines and other infrastructure necessary to
meet traffic and usage demands on the AIM Service in
connection with the offering of the AIM IP Telephony Services.
3.2.2 N2P Technical Problem.
(a) Occurrence; Cure Period. In the event of
any material technical problem (over which N2P exercises
control) affecting the use by AIM Members of any AIM IP
Telephony Service and constituting a Severity 1 Problem or
Severity 2 Problem (an "N2P Technical Problem"), AOL shall
have the right to suspend (i) distribution of such AIM IP
Telephony Service, (ii) any of AOL's promotional obligations
hereunder related specifically to such AIM IP Telephony
Service, and/or (iii) any Listings related specifically to the
such AIM IP Telephony Service until such time as N2P corrects
such N2P Technical Problem. Prior to suspending any such
distribution of any particular AIM IP Telephony Service,
related promotional obligations of AOL or related Listings
hereunder, AOL shall provide N2P with notice and an
opportunity to cure, as provided below, unless, in its
reasonable discretion, AOL will be materially and adversely
affected in a substantial manner by failing to act immediately
or at some subsequent time prior to the completion of the
notice and cure period. Any such notice shall be in writing
and shall contain a reasonably detailed explanation for AOL's
intention to suspend (and, in reasonable detail, the reasons
for suspending) access to the particular AIM IP Telephony
Service and related promotional obligations and Listings due
to the occurrence of the N2P Technical Problem. Upon receipt
of such notice, N2P will have at least [****] to cure the
applicable N2P Technical Problem to AOL's reasonable
satisfaction and, if cured, AOL shall not suspend the affected
AIM IP Telephony Service(s) and/or related promotional
obligations
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EXECUTION VERSION
or Listings. AOL will make good faith efforts to facilitate
N2P's cure efforts and to extend the cure period as
appropriate, so long as AOL, in its reasonable discretion, is
not materially adversely affected by any such extension. In
the event AOL suspends distribution of any AIM IP Telephony
Service, any AOL promotional obligations and/or any Listings
due to the occurrence of any such N2P Technical Problem, AOL
will notify N2P in writing within [****] of such decision,
setting forth in reasonable detail the explanation therefor.
(b) Cure; Resumption of Distribution. When
and if the cure to an N2P Technical Problem is demonstrated to
AOL's reasonable satisfaction, which satisfaction shall not be
unreasonably withheld, AOL shall resume distribution of the
affected AIM IP Telephony Service, promotional obligations and
Listings as soon as commercially practical; provided, however,
that (in addition to any other remedies available to AOL in
this Agreement, including, without limitation, in Section 16.6
hereof) in the event that N2P shall fail to cure any such N2P
Technical Problem within thirty (30) days following notice
thereof by AOL to N2P, then AOL shall have the right to
terminate the exclusivity (as set forth in Section 9 of this
Agreement) with respect to the Core Premium Service(s)
affected by such N2P Technical Problem and thereby enter into
an agreement with any third party (including any N2P
Competitor) to promote (or offer the services of) such third
party with respect to such Core Premium Service(s).
3.3 Competitive Performance Standards. [****]
3.4 [****] AOL. For the avoidance of doubt, the Parties
acknowledge that AOL [****] connection with any modification,
addition, deletion, feature or functionality or other
improvement required to be provided by N2P in order for N2P to
comply with its obligations under Section 3 of this Agreement.
3.5 N2P Not Responsible for Core AOL Obligations. The Parties
acknowledge that the Core AOL Obligations shall not affect the
determination as to whether N2P has satisfied the criteria and
obligations set forth in Section 3 of this Agreement. The
Parties also acknowledge that the determination of whether N2P
has satisfied the criteria and obligations set forth in
Sections 3.1, 3.2 or 3.3 of this Agreement shall not be
affected by features or functionality that N2P offers to AOL
and that AOL (a) declines to implement or support or (b)
cannot (e.g., due to technological or operational constraints
within the control of AOL) reasonably implement or support,
provided that (i) in either such case, N2P provides AOL with
reasonable prior, informal, written notice (e.g., by e-mail)
of the anticipated effects of AOL's not implementing or
supporting the features or functions on the AIM IP Telephony
Services and (ii) in the case of technological or operational
constraints within AOL's control, N2P provides AOL with
reasonable prior informal notice of such constraints.
3.6 Restrictions.
3.6.1 N2P will not integrate, or enter into an agreement to
integrate into any of the AIM IP Telephony Services or the N2P
IP Telephony Software, or in any other products or services
developed by or on behalf of N2P, instant messaging protocols,
components or other technology that use or access the AIM
Service, the AOL Service, or any other AOL-branded product or
service (e.g., ICQ, CompuServe) in a manner not expressly
authorized by AOL, or that AOL contends in good faith is not
expressly authorized, or distribute, market or promote any
products or services containing instant messaging protocols or
components or other technology that use or accesses the AIM
Service, or solicits, encourages or promotes end-users to use
or access the AIM Service, in a manner not expressly
authorized by AOL or that AOL contends in good faith is not
expressly authorized.
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EXECUTION VERSION
3.6.2 Except as expressly provided herein, N2P shall not have
any right to (i) adapt, alter, copy, modify, translate or
create derivative works of the AIM Client, or (ii) reverse
engineer, decompile, disassemble, or otherwise attempt to
reconstruct the source code of, those portions of any AOL
software (e.g., the AIM Client) provided to N2P, as
applicable. N2P acknowledges that it obtains no intellectual
property rights or licenses by this Agreement except for those
licenses expressly granted, and that, except as otherwise
provided herein, AOL hereby expressly retains all of its
rights in and to the AIM Service, the AOL Namespace, the AOL
Service, and the AIM Client.
4. DISTRIBUTION AND PROMOTION
4.1 Distribution and Promotion Requirements. During the Term,
subject to the terms and conditions herein, the Parties agree
to the following:
4.1.1. Access to AIM IP Telephony Services. AOL shall
distribute the AIM IP Telephony Services through the
AIM Service, provided that AOL shall determine in its
reasonable discretion (upon consultation with N2P)
the manner in which such distribution occurs (e.g.,
through the bundling with the AIM Client of the
AOL-customized N2P IP Telephony Software, through a
"plug-in" of such software, etc., or through
distribution of the AIM Client or a separate AIM
application which includes certain functionality or
services from N2P using the SDK provided to AOL
pursuant to Section 10.1.2).
4.1.2 Distribution of AOL IP Telephony Software.
(a) PTP Calling Card Service. Promptly upon
the acceptance by AOL of the initial version of the
PTP Calling Card Service (including any Updates
thereto), AOL shall promote and distribute such
initial version as part of the AIM Service subject to
the remainder of this Section 4.1.2.
(b) Secondary AIM IP Telephony Services.
Following the acceptance by AOL of the initial
version of any Secondary AIM IP Telephony Service
(including any Updates thereto) and subject to the
remainder of this Section 4.1.2, AOL shall promote
and distribute such accepted Secondary AIM IP
Telephony Service as part of the AIM Client and
related version of the AIM Service. AOL shall launch
(i.e., make generally commercially available) such
AIM Client and version of the AIM Service no later
than [****]; provided, however, that in the event
that AOL shall not have launched the AIM Client and
related version of the AIM Service by [****] (as
N2P's sole and exclusive remedy hereunder), the
Initial Term shall be extended by one day for each
day beyond [****] that AOL fails to launch the AIM
Client and related version of the AIM Service.
Notwithstanding the foregoing, in the event AOL's
failure to distribute such accepted Secondary AIM IP
Telephony Service(s) by [****] due solely to AOL's
inability to integrate N2P's functionality or
services using the SDK (without fault of N2P), then
AOL shall distribute such AIM IP Telephony Service
through bundling the AOL IP Telephony Software with
the AIM Client or through integration using the SDK
no later than [****], provided that N2P shall have
delivered the SDK to AOL in accordance with Section
10.1.2.
(c) Subsequent Versions. Following the
acceptance by AOL of any Subsequent Version, AOL will
distribute such Subsequent Version with the AIM
Service within a time period [****] to be determined
by AOL in its reasonable discretion (e.g., taking
into account such factors as the imminence of the
launch of a new version of the AIM Client, etc.),
upon consultation with N2P.
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EXECUTION VERSION
4.1.3 Educational Promotions of AIM IP Telephony Services.
Upon the Launch Date of any of the AIM IP Telephony
Services, AOL will use good faith efforts, in AOL's
sole discretion, to educate AIM Members, through the
AIM controlled properties, of how to access and use
such AIM IP Telephony Service(s).
4.1.4 N2P Listing and Promotion. AOL shall feature, offer
and promote the AIM IP Telephony Services prominently
in the AIM Service.
(a) In furtherance and as part of the
foregoing, the initial implementation of such
promotional requirement shall include, where
feasible, at AOL's sole discretion, the following
(and any future implementation shall be consistent in
terms of prominence (e.g., in terms of size,
location, appearance and the like) with the
following):
(i) Each AIM IP Telephony Service
will be "sub-branded" with the name "Net2Phone,"
"N2P" or any other N2P Mark designated by N2P,
subject to the approval of AOL not to be unreasonably
withheld (the "N2P Name"). "Sub-branding" means that
each AIM IP Telephony Service will be labeled and
marketed with the name [****] or such other AOL name
as AOL designates (the "AOL Name"), but that each
such AIM IP Telephony Service shall, where feasible
and to the extent not inconsistent with the AOL Look
and Feel, have a prominent tag line such as [****] or
[****] and a N2P Mark. The N2P tag line and Mark (the
"Brandings") will be included prominently in (and
where feasible, will be placed within reasonable
proximity to the AOL brandings in) the (A) areas
which provide information regarding the use of and
enable AIM Members to launch the AIM IP Telephony
Service (collectively, the "Support Area"), (B) other
areas within the AIM Service that relate principally
to the AIM IP Telephony Services (e.g., [****]), and
(C) the AOL IP Telephony Software or areas within the
AIM Client that relate principally to an AIM IP
Telephony Service (the "Branded Areas").
(ii) The Brandings will also appear
prominently in advertising, promotional, public
relations and marketing material relating principally
to the AIM IP Telephony Services.
(iii) There will be links (evidenced
by the AOL Name or a graphical image of a telephone,
or such other link as AOL selects) to the
PC-originated AIM IP Telephony Services (initially,
the PC-to-Phone Service) throughout the AIM Service
in areas providing AIM Members with the ability to
perform communication functions (e.g., [****])
(collectively, the "Links"). The Links will launch
the AIM IP Telephony Services.
(b) The name, design and "look and feel" of
the Branded Areas, the Brandings and the Links
(collectively, the "Listings") will be determined by
AOL in its reasonable discretion in consultation with
N2P. The Listings will properly convey the
functionality of the AIM IP Telephony Services.
(c) AOL generally will provide to N2P
branding, marking and promotion that are no less
prominent, in terms of size, placement, appearance
and the like, than those accorded to [****]. In the
event that AOL begins to sell advertising inventory
on [****] of the AIM Client, AOL shall provide N2P
with an opportunity to bid on the purchase of a
placement within such inventory.
(d) Subject to the other requirements of
this Section 4.1.4, Section 9.1.1, and the other
provisions of this Agreement, the foregoing will not
preclude users from linking to another such provider
from the AIM Service, provided that the link to such
other provider is limited to [****] that is no more
prominent than any similar reference to N2P. Nothing
in this Agreement shall prevent AOL from offering
(whether through buttons, icons or otherwise) an AOL
PC-to-PC communication function on the AOL Service or
the AIM Service.
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EXECUTION VERSION
4.1.5 Promotion of AIM Service. N2P shall promote AOL or
the AIM Service to its customers and partners, and
shall use reasonable efforts to encourage such
customers and partners to adopt the AIM Service as an
integrated component of the IP Telephony products and
services provided to such customers and partners by
N2P, as and to the extent set forth in Exhibit E. All
promotion of the AIM Service by N2P hereunder,
including, without limitation, any and all such
promotional materials distributed by or authorized by
N2P shall be subject to AOL's prior written consent.
AOL shall assist N2P, as reasonably requested by N2P,
in such promotional efforts. In addition to the
foregoing, all promotion of the N2P Services by AOL
hereunder, including, without limitation, any and all
such promotional materials distributed by or
authorized by AOL shall be subject to N2P's prior
written consent.
4.2 General Conditions to Distribution and Promotional
Obligations. Notwithstanding anything contained in this
Section 4, AOL shall have no obligation to promote a
particular version of the AIM IP Telephony Services, to
distribute to AIM Members a particular version of the AIM IP
Telephony Services or to provide any Listing therefor to the
extent that and for so long as:
(i) AOL has received notice (whether written or
verbal) of, and reasonably believes, that the reproduction,
use or distribution of such version of the AIM IP Telephony
Services in accordance with this Agreement infringes or
misappropriates the intellectual property rights of any third
party, provided that AOL may not promote or offer access to
any other similar IP Telephony product unless AOL reasonably
believes that it raises a lesser risk of infringement or
misappropriation; or
(ii) An aspect of any such version of the AIM IP
Telephony Service exists, other than an acknowledged security
risk that a corporation/user accepts by opening up holes in
its firewall to enable use of any such AIM IP Telephony
Service (and other than security risks ordinarily associated
with Web-based communications products), that could be
exploited in a manner that AOL reasonably believes (a) would
expose AIM Members to potential efforts to invade their
privacy or damage or modify data, software or hardware in an
unauthorized manner or (b) would otherwise result in
meaningful and serious claims that any such AIM IP Telephony
Service presents a security risk to its users, provided that
AOL may not promote or offer access to any other similar IP
Telephony product unless AOL reasonably believes that it
raises a lesser security risk.
4.3 Exclusive Offers/AIM Member Benefits. N2P shall offer through
the AIM Service on a regular and consistent basis (but no less
than once per quarter) special offers comparable to those
available through Additional N2P Channels (e.g., preferred
rates to specific termination points to be offered
periodically, raffle or sweepstakes conducted from time to
time, etc.), which such special offers shall be exclusively
available to AIM Members (the "AOL Exclusive Offers"). Each
AOL Exclusive Offer made available by N2P shall provide a
substantial member benefit to AIM Members, either by virtue of
a meaningful price discount, product enhancement, unique
service benefit or other special feature. N2P will provide AOL
with reasonable prior notice of AOL Exclusive Offers so that
AOL can market the availability of such AOL Exclusive Offers
in the manner AOL deems appropriate in its reasonable
discretion; provided that AOL shall consult with N2P regarding
the marketing of the AOL Exclusive Offers. In addition to the
foregoing, the Parties shall create a virtual and/or physical
debit card to be used in connection with the AIM IP Telephony
Services and/or any other products or services as determined
by AOL in its sole discretion (the "AIM Card").
4.4 Limited Waiver. To the extent that any of N2P's obligations
under this Agreement are expressly inconsistent with N2P's
obligations to ICQ, Inc. ("ICQ") (pursuant to N2P's July 15,
1999 agreement with ICQ, Inc.), CompuServe Interactive
Services, Inc. ("CompuServe") (pursuant to CompuServe's
agreement with N2P dated as of November 19, 1999) or any other
agreement with any other AOL Affiliate existing as of the
Effective Date (collectively,
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EXECUTION VERSION
the "Inconsistent Obligations"), and to the extent that such
Inconsistent Obligations may reasonably restrict N2P from
materially performing its obligations under this Agreement,
then N2P shall provide notice to AOL immediately upon its
discovery of such Inconsistent Obligations. Promptly after
AOL's receipt of such notice from N2P, AOL and N2P shall work
together in good faith to work around or obtain a waiver from
ICQ, CompuServe or such other AOL Affiliates of such
Inconsistent Obligations. To the extent that the Parties
cannot or do not obtain relief in connection with such
Inconsistent Obligations, then AOL shall have the option, in
its sole discretion, to: (a) waive such inconsistency in this
Agreement and instruct N2P to perform all of its obligations
under this Agreement and such other agreement(s), including
any and all such Inconsistent Obligations; or (b) elect under
which of the applicable agreements for N2P to perform such
Inconsistent Obligations. Notwithstanding the foregoing,
nothing contained in this Section 4.4 shall be construed in
any manner whatsoever to provide N2P with an excuse for
non-performance under this Agreement, and except as expressly
provided herein, AOL reserves any and all of its rights in
connection with N2P's failure to perform under this Agreement.
5. AIM MEMBER REGISTRATION AND INFORMATION
5.1 Ownership of Assets and Customer Relationships. In addition to
the provisions of Section 12.1, AOL shall own all tangible and
intangible assets (and all personal and intellectual property)
provided by AOL in developing the AIM IP Telephony Services
(except as otherwise expressly set forth herein) and the
Support Area, including all materials provided by AOL to N2P
for the purpose of branding the AIM IP Telephony Service and
the Support Area ("AOL Branding Materials"), and the
relationship with AIM Members, including, without limitation,
all aspects of such relationship specified in this Section 5.
AOL shall own any and all rights in the call detail records
generated in providing the AIM IP Telephony Services which
shall be treated as Confidential Information for purposes of
this Agreement (collectively, the "Call Detail Records"). AOL
hereby grants N2P a non-exclusive, non-transferable,
worldwide, [****] license to use the Call Detail Records only
to the extent necessary to provide the AIM IP Telephony
Services to be provided by N2P hereunder (including any
related planning and development). Such license shall continue
through the end of the Term, but shall survive expiration of
the Term with respect to the provision by N2P of the PTP
Calling Card Service. Without limiting the foregoing, N2P
acknowledges and agrees that AOL may, in its sole discretion,
promote, distribute and/or use the AIM Card (in accordance
with applicable law) as an electronic debit card throughout
the Term in connection with any other products and services
offered by AOL and/or its partners, in AOL's sole discretion,
[****] be mutually agreed upon by the Parties. N2P shall
perform any and all reasonably requested development services
(i.e., considering available technology, regulatory
requirements, and time required) for such use, and [****] in
connection with material, incremental development and/or
customization required for such use by AOL after the Effective
Date, subject to AOL's prior written consent.
5.2 AIM Member Relationship.
5.2.1 Registration Information. In order to use the Surcharged
AIM IP Telephony Services, an AIM Member will be required to
register for such AIM IP Telephony Services. The Parties shall
determine by mutual agreement the terms and conditions of use
to be agreed to by such AIM Members (including, without
limitation, with respect to any special access codes to be
used by such AIM Members in connection with the AIM IP
Telephony Services, provided, that neither Party shall
unreasonably withhold such agreement with respect to the use
of such special access codes), and AOL shall determine both
(i) the information to be collected from the AIM Members as
part of the registration process (provided that such
information shall in any event include information that N2P
reasonably requests in connection with the provision of the
AIM IP Telephony Services, including, without limitation, any
Personal Identification Numbers (PINs) for use by AIM Members
in connection with the AIM IP Telephony Services) and (ii) any
domain names, unique identifier
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EXECUTION VERSION
numbers, e-mail addresses and passwords to be assigned and/or
used by such AIM Members in connection with such AIM IP
Telephony Services. Registration for the AIM IP Telephony
Services shall take place at the Support Area or at such other
location as may be mutually agreed upon by the Parties. AOL
shall use reasonable efforts to build into the end of the
registration process for the AIM Service (the "AOL
Registration Process") a sub-routine for the registration for
the AIM IP Telephony Services. Notwithstanding the foregoing,
in the event that any AIM Members shall not have registered
for the Surcharged AOL IP Telephone Services prior to
attempting to use any such service, AOL shall cause any such
AIM Member to register for the Surcharged AIM IP Telephony
Services prior to the use thereof. N2P shall determine the
pricing for the Core Premium Services and other AIM IP
Telephony Services to be provided by N2P hereunder. In
addition, N2P shall handle the assignment of applicable phone
numbers to AIM Members (using the AIM Member unique identifier
number as an identifier and provided that such phone numbers
and special access codes (unless otherwise agreed upon in
writing by the Parties) shall be different from any phone
numbers and access numbers used in connection with any N2P
Services), and shall handle the billing and collection of any
fees or other amounts to be charged to AIM Members from time
to time in connection with the AIM IP Telephony Services
(collectively, the "IPT Fees"); provided, however that, unless
otherwise expressly consented to in writing by AOL, N2P shall
not directly contact or communicate with any AIM Members other
than in connection with the billing and collection of the IPT
Fees, or in connection with maintenance and customer support
for the AIM IP Telephony Services; provided, further, that
such communications shall be limited to obtaining billing
information, providing pricing information related to the AIM
IP Telephony Services and ensuring collection of the IPT Fees
or providing maintenance or customer support, and shall not be
used by N2P as a platform to sell, market, advertise or
promote any products or services other than the AIM IP
Telephony Services.
5.2.2 Billing Transition. Notwithstanding the foregoing, at
any time during the Term and at AOL's sole discretion, AOL
shall have the right to assume responsibility for the
aforementioned billing and collection obligations with respect
to the IPT Fees (collectively, the "Billing Transition");
provided, however, that (i) AOL shall give N2P reasonable
advance notice of any such Billing Transition; (ii) the
Billing Transition shall be subject to agreement of the
Parties on arrangements (a) for N2P to receive the same
portion of revenue from the AIM IP Telephony Services as it
would have received before the Billing Transition (and on
procedures to verify the proper payment of such revenue), (b)
for handling fraud, and (c) for the handling of the billing
for the PTP Calling Card Service after the Initial Term, and
(iii) AOL shall be responsible for all costs and out-of-pocket
expenses incurred by N2P in connection with such Billing
Transition. In the event of such Billing Transition, N2P
hereby agrees to provide AOL with reasonable assistance (and
to otherwise cooperate with AOL), [****], regarding such
Billing Transition, and following such Billing Transition, AOL
shall use commercially reasonable efforts to ensure that the
billing services comply in all material respects with the
standards set forth in Exhibits B and C of this Agreement.
5.3 AIM Member Information and Solicitation.
5.3.1 Ownership of AIM Member Information. AOL shall
own any and all information collected from AIM Members in
connection with the AIM IP Telephony Services, including,
without limitation, information collected during the
registration processes for the AIM Service and/or any AIM IP
Telephony Service, respectively, and information then or
subsequently obtained from any use of the AIM Service and/or
any AIM IP Telephony Services, including without limitation
[****] (collectively, "User Information"). All User
Information shall be deemed Confidential Information of AOL.
N2P agrees, both during and after the Term, not to (i) use any
User Information for any purpose other than in connection with
the operation of the AIM IP Telephony Services or (ii)
disclose any such information to any third party without the
prior written consent of AOL, which consent may be granted or
withheld in AOL's sole and absolute discretion; provided,
however, that N2P may disclose
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EXECUTION VERSION
User Information solely as necessary (and only to the extent
necessary) to comply with applicable laws, regulations and
government orders or requests; provided, further, that N2P
shall use all reasonable efforts to limit any such disclosure
to the maximum extent possible and to provide AOL with as much
advance written notice of N2P's intended use or disclosure as
is practicable. N2P agrees to comply with the AOL Privacy
Policy to the same extent as AOL, as such policy exists on the
Effective Date (i.e., the AOL Privacy Policy), as the same may
be modified by AOL and notified to N2P from time to time. N2P
shall not sell, license, rent or otherwise transfer any AIM
Member Information or any list of AIM Members for any purpose
whatsoever, without AOL's prior written consent.
Notwithstanding the foregoing, N2P shall have the right to use
User Information to the extent necessary to provide the PTP
Calling Card Service to then-existing AIM Member customers
following the expiration of the Initial Term, and AOL shall
provide N2P with the customer records and other information to
the extent necessary for N2P to continue providing the PTP
Calling Card Service to such customers for the [****] period
immediately following the expiration of the Initial Term,
subject to Section 5.3.2 and 5.3.3 of this Agreement and
prohibitions, if any, under applicable law.
5.3.2 No Competitive Solicitation. [****].
5.3.3 No Communication. During the Term and for the
[****] period following the expiration or termination of this
Agreement (and without limiting any other provision of this
Agreement, including Section 5.3.1), N2P agrees not to send
any AIM Member any messages or communications on or through
the Qualified AIM Services for any commercial purpose, unless
N2P has an Independent Business Relationship with such AIM
Member. Any commercial e-mail communications (i.e., e-mail
communications offering products or services) to AIM Members
on or through the AIM Service or the AIM IP Telephony Services
which are otherwise permitted hereunder (i.e., permitted as
exceptions to general prohibitions included in this Agreement)
shall include a prominent and easy means to "opt-out" of
receiving any future commercial e-mail communications from
N2P. The Parties acknowledge that any incidental (i.e., de
minimis) failure by N2P to comply with the terms of this
provision shall not be deemed a material breach of this
Agreement; provided, however, that N2P shall take appropriate
steps to prevent any further failure to comply with the terms
of this Section 5.3.3.
6. TECHNICAL SUPPORT
N2P shall provide all frontline technical and customer support
to AIM Members as set forth in Exhibit B, including, without
limitation, technical and customer support for AIM Members who
have problems with, or questions concerning, the installation,
use, operation or maintenance of the AIM IP Telephony Service
(collectively, the "Frontline Support"). The Parties
acknowledge that N2P may provide such Frontline Support using
e-mail and/or telephone support, at N2P's option. N2P shall,
[****], provide to AOL the back-end support regarding the AIM
IP Telephony Service specified on Exhibit D. During the Term,
each Party will designate one (1) internal technical contact
(each such contact, a "Technical Liaison") and will conduct
technical communication activities as may be necessary for the
optimization of the integration of the AIM IP Telephony
Services into the AIM Service. AOL will use commercially
reasonable efforts to provide technical and marketing
assistance, including facilitating the maintenance of regular
communication channels between relevant personnel, for the
purpose of assisting both Parties in abiding by their
respective obligations under this Agreement. The initial
Technical Liaison for N2P shall be [****], and the initial
Technical Liaison for AOL shall be [****], unless otherwise
designated from time to time by the Parties. Each Party may
change its Technical Liaison from time to time, in its sole
discretion. Unless otherwise agreed upon by the Parties, N2P
shall not be obligated to provide support for any
modifications or
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EXECUTION VERSION
additions to the AIM IP Telephony Services carried out by AOL
(or carried out for AOL by a third party not contracted or
subcontracted by or on behalf of N2P); provided, however, that
where not required to provide such support pursuant to the
terms of this Section 6, N2P shall assist in the support of
such work to the extent necessary for either Party to comply
with its obligations under this Agreement.
7. PAYMENT AND REVENUE PROVISIONS
7.1 Guaranteed Payments; Refund. In partial consideration for
[****] marketing of the AIM IP Telephony Services, [****]. In
the event of any termination of this Agreement before
expiration of the Initial Term in accordance with (i) Section
16.2 due to a material breach by AOL of this Agreement, (ii)
Section 16.3 due to a Change of Control of AOL by a N2P
Competitor or a Parent Company Competitor or (iii) Section
16.5 due to the occurrence of a Regulated Entity Event, [****]
shall refund to [****] (e.g., if such termination occurs on
the [****] anniversary of the Effective Date, and [****] has
paid [****] in guaranteed payments as required by the terms of
this Agreement, [****] shall refund to [****] of such
guaranteed payments, [****]. In the event of any termination
of this Agreement before the expiration of the Initial Term in
accordance with Section 16.6(i)(c) or Section 16.6(i)(d), then
[****] shall refund to [****] of the pro rata portion (based
on a [****]) of any guaranteed payments made by [****] prior
to the date of such early termination. In partial
consideration for such guaranteed payments, [****] shall
provide [****] during the Initial Term with promotional
placements (on areas of the [****] Service or other Web
properties solely controlled by [****], to be determined by in
its reasonable discretion as further set forth in Section
4.1.4) with a value of [****] in Year [****] (based on amounts
for comparable Advertisements set forth on [****] then-current
advertising rate card).
7.2 Net Advertising Revenue for IP Telephony Services.
7.2.1 Advertising Sales. AOL shall have the right to
license or sell promotions, advertisements, links,
sponsorships, pointers or similar services or rights
("Advertisements") through the AOL Service and the AIM
Service, subject to AOL's then-applicable advertising
policies.
7.2.2 Revenue Sharing.
(a) Net Advertising Revenue. As partial consideration
for its marketing efforts hereunder, [****] shall retain
[****] of the Net Advertising Revenue. [****] shall pay
[****], within [****] following the end of each quarter during
the Term, the remaining [****] of the Net Advertising Revenue
that is actually collected by [****] or any Affiliate of AOL
(collectively, the "Advertising Revenue Share").
(b) Net Button Advertising Revenue. In the event that
[****] sells (which such decision to sell shall be in [****]
sole discretion) any buttons that appear on the [****] IP
Telephony client (the "Special Buttons"), (i) [****] shall
receive (1) [****] of the Net Button Advertising Revenue
generated from the sale (without N2P participation or support)
of any such Special Button or (2) [****] of the Net Button
Advertising Revenue generated from the sale (with [****]
participation or support) of any such Special Button, and (ii)
[****] shall retain the remainder of such Net Button
Advertising Revenue (clauses (i) and (ii) above, collectively,
the "Net Button Advertising Revenue Share"). Notwithstanding
the foregoing, in no event shall the total portion of the Net
Button Advertising Revenue received by [****] during the Term
exceed [****] (i.e., after the receipt by [****] in Net Button
Advertising Revenue, [****] shall retain [****] of such Net
Button Advertising Revenue), except as otherwise mutually
agreed to by the Parties in writing. In the event that [****]
utilizes such
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EXECUTION VERSION
Special Buttons to promote any [****] or other commercial
products or services, [****] shall utilize a portion of such
Special Buttons (i.e., at least one such Special Button) to
promote the [****] IP Telephony Services.
7.2.3 Definition of Net Advertising Revenue. For purposes of
this Agreement, "Net Advertising Revenue" shall mean, for any
calendar quarter, [****] (or, if no such commissions were
incurred, [****] of the gross revenues received by AOL for
such Advertisements). If Advertisements in the Designated
Advertising Areas are sold or otherwise made available to a
party that also purchases or obtains Advertisements through
one or more other areas or media of AOL or an Affiliate
(collectively, a "Combined Sale"), the revenue from the
Combined Sale shall be allocated [****] between such
Designated Advertising Areas and such other areas or media
(based on list prices for such Designated Advertising Areas
and other areas or media). For the avoidance of doubt, [****].
7.2.4 Ownership of Advertising. The right of N2P to
participate in the Net Advertising Revenue pursuant to the
provisions of this Section 7.2 shall in no way create any
ownership interest in N2P with respect to AOL advertising
inventory. AOL owns all right, title and interest in and to
the Advertisements and promotional spaces within the AIM
Service, including the Support Area and the AIM Client, and
AOL has the sole authority to market and sell such
Advertisements; provided, however, that AOL agrees that,
during the Initial Term within the Designated Advertising
Areas, AOL shall not include any Advertisements for (or sell
any advertising inventory to) N2P Competitors with respect to
(i) the Core Premium Services (to the extent that N2P enjoys
exclusivity with respect thereto under this Agreement) and
(ii) any Optional Service(s) or Expanded Service(s) which the
Parties mutually agree from time to time shall be exclusive to
N2P). Further, AOL shall be responsible for all obligations,
liabilities and duties under any and all agreements that AOL
has with third parties and otherwise with regard to such
Advertisements, including serving such advertisements, subject
to Section 15 of this Agreement.
7.3 Transaction Revenues Sharing Arrangement.
7.3.1 Revenue Threshold. If at any time during each of Years
One through Three or the Renewal Term of this Agreement the
amount of Transaction Revenues received by N2P during such
Year exceeds [****] (for each such Year, the "Revenue
Threshold"), then N2P will pay AOL, in partial consideration
for AOL's marketing and distribution efforts hereunder,
[****]. N2P will pay all of the foregoing amounts within
[****] following the end of the Year in which the applicable
Transaction Revenues were received. At the end of each such
Year, the calculation of Transaction Revenues for purposes of
this Section 7.3.1 shall recommence. N2P shall have the right
to collect and retain all [****] other than the [****] paid to
or retained by AOL. To the extent mutually agreed upon by the
Parties in writing in connection with any Billing Transition,
AOL shall be responsible (following any such Billing
Transition) for calculating the [****] and for paying N2P its
portion of such [****] as contemplated by this Section 7.3.1.
7.3.2 Revenue Share. The "Revenue Share" shall mean the
amounts to be paid to AOL (in each case, determined as a
percentage of Incremental Transaction Revenues) set forth on
Exhibit H hereto.
7.3.3 [****] Users. To the extent that N2P is required to
share revenue with [****] (pursuant to agreements in full
force and effect on the Effective Date) for transaction
revenues generated with respect to the Core Premium Services,
any Transaction Revenue received by N2P [****] with respect to
the Core Premium Services shall not constitute Transaction
Revenues for purposes of this Section.
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EXECUTION VERSION
7.4 No Other Revenue Sharing. Except as expressly provided in this
Section 7 and on Exhibit H, neither Party shall be entitled to
any revenues derived from, or related to, the activities of
the other Party.
7.5 Alternative Revenue Streams. In the event that N2P receives or
desires to receive (directly or indirectly) any compensation
in connection with the AIM Service from the sale of any
Products other than the AIM IP Telephony Services or as
otherwise agreed to by the Parties (an "Alternative Revenue
Stream"), N2P will promptly inform AOL in writing, and the
Parties will negotiate in good faith regarding whether N2P
will be allowed to market the Products producing such
Alternative Revenue Stream (the "Alternative Products")
through the AIM Service, and if so, the equitable portion of
revenues from such Alternative Revenue Stream (if applicable)
that will be shared with AOL.
7.6 Reports and Payments. Each Party (the "Paying Party") shall
comply with the following requirements in connection with its
payment obligations to the other Party (the "Payee Party")
under this Agreement: Within [****] following the end of each
payment period, the Paying Party shall provide the Payee Party
with a report that contains information detailing the amount
payable for such payment period. Such report shall, with
reasonable detail, explain the basis upon which such payment
has been determined and shall be accompanied by payment in
full of all amounts indicated on such report as due for such
period. Each such report shall constitute Confidential
Information of the Paying Party. Without limiting the
generality of the foregoing:
7.6.1 Reports on Transaction Revenues. N2P will
provide AOL with a report in a mutually agreed-upon format,
detailing the following activity in such period (and any other
information mutually agreed upon by the Parties as required
for measuring Transaction Revenues): [****] AOL will be
entitled to use the Sales Reports only in its internal
business operations, subject to the terms of this Agreement.
The report will also contain information which supports the
payment based on Transaction Revenues, including information
identifying [****].
7.6.2 Reports on Advertising Revenue Share. AOL will provide
N2P with a quarterly report in a mutually agreed-upon format,
detailing the following in such quarter (and any other
information mutually agreed upon by the Parties as required
for measuring Advertising Revenues): [****].
7.7 Late Payments; Wired Payments. All amounts owed hereunder not
paid when due and payable will bear interest from the date
such amounts are due and payable at the prime rate in effect
at such time. All payments required to be paid to AOL
hereunder will be paid in immediately available,
non-refundable U.S. funds wired to the "America Online"
account, Account Number [****]. All payments required to be
paid to N2P hereunder will be paid in immediately available,
non-refundable U.S. funds wired to an account to be designated
by N2P (within thirty (30) days following the Effective Date)
in a written notification to AOL.
7.8 Audit Rights. Each Party (as Paying Party) will maintain
complete, clear and accurate records of the information
required to determine the amounts of payments made hereunder.
For the sole purpose of ensuring compliance with the payment
obligations of this Agreement, either Party (as Payee Party)
will have the right to request that an independent certified
accountant selected by the Parties (and which accountant
enters into a confidentiality agreement mutually agreed to by
the Parties) conduct (no more than twice per calendar year of
this Agreement) a reasonable and necessary inspection of
portions of such books and records as are necessary to verify
the correctness of the payments made hereunder. Any such audit
may be conducted after twenty (20) business days prior written
notice to the Paying Party. The Payee Party shall bear the
expense of any audit conducted
19
<PAGE> 20
EXECUTION VERSION
pursuant to this Section 7.8 unless such audit shows an error
in the Payee Party's favor amounting to a deficiency in excess
of [****] of the actual amounts payable to the Payee Party
hereunder, in which event the Paying Party shall bear the
reasonable costs and expenses incurred in connection with such
audit. The Paying Party shall pay the Payee Party the amount
of any deficiency discovered by the Payee Party within [****]
after receipt of notice thereof from the Payee Party, except
to the extent disputed in good faith by the Paying Party.
7.9 Taxes. Each Party will collect and pay, and indemnify and hold
harmless the other Party from, any sales, use, excise, import
or export value added or similar tax or duty required to be
collected and paid by such Party, including any penalties and
interest, as well as any costs associated with the collection
or withholding thereof, including attorneys' fees
(collectively, the "Taxes").
7.10 Fraudulent Transactions. To the extent permitted by applicable
law, N2P will (i) provide AOL with prompt notice of any
fraudulent order (a "Fraudulent Order"), including the date,
screen name or e-mail address and amount associated with such
order, promptly following N2P obtaining knowledge that the
order is, in fact, fraudulent and (ii) as promptly as possible
following the occurrence of any such Fraudulent Order (but in
no event later than one (1) month after the occurrence
thereof), provide AOL with a report regarding any such order
and the steps taken by N2P with respect thereto.
7.11 [****]
8. STOCK WARRANTS
Attached hereto as Exhibit G is a form of amended and restated common
stock warrant to be executed by N2P on behalf of AOL, or, if AOL so
directs N2P in writing, any parent, subsidiary or affiliate entity of
AOL). In the event that AOL directs N2P to issue such warrant to such
other entity, the Parties agree that such entity shall have the right
to enforce the terms of such warrant against N2P.
9. EXCLUSIVITY
9.1 Scope.
9.1.1 N2P Exclusivity. Subject to the provisions of
Section 1.1.8 (with respect to other AOL or third party PC to
PC communications products), and Section 4.14(d), and except
to the extent that AOL is expressly relieved of its
exclusivity obligations under this Agreement, N2P shall be the
exclusive provider of the Core Premium Services on the AIM
Service for the period of [****] immediately following the
Effective Date (the "N2P Exclusivity"); [****]. Provided that
N2P retains exclusivity hereunder with respect to any Core
Premium Service, AOL will not promote on the AIM Service any
IP Telephony service which is comparable to such Core Premium
Service. The Parties hereby acknowledge and agree that the N2P
Exclusivity may be terminated with respect to particular AIM
IP Telephony Services in accordance with the terms of this
Agreement.
9.1.2 [****].
9.2 Optional Services. With respect to all other IP Telephony
services not expressly contemplated by this Agreement, [****]
with respect to the offering of such additional services
through the AIM Service. In the event that the Parties cannot
agree, within such time period, to the terms and conditions
regarding the provision of any such additional service to AIM
Members through the AIM Service, AOL shall have the right to
offer such additional service(s) to AIM Members through any
third party (including, without limitation, [****].
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EXECUTION VERSION
9.3 Termination of Exclusivity. In the event that [****] is
entitled to relief from the [****] as to a particular Core
Premium Service and/or country in accordance with the express
terms and conditions of this Agreement, then only the [****]
with respect to such Core Premium Service and/or country (as
the case may be and subject to Section 16 hereof) shall
terminate.
9.4 Exception to Exclusivity. For the avoidance of doubt, the
Parties acknowledge that the N2P Exclusivity does not preclude
the listing of N2P Competitors or any AOL PC-to-PC
communication function in any whites pages, yellow pages or
other online search or directory service, subject to Section
4.1.4 and Section 7.2.4.
10. LICENSE FROM N2P
10.1 Licenses.
10.1.1 Software License. Subject to all the terms and
conditions of this Agreement, N2P hereby grants to AOL a
worldwide, non-exclusive, non-transferable, [****] license for
the Term to use, reproduce, distribute directly and
indirectly, transmit, display, perform and sublicense (i.e.,
grant to end-users the right to use) and adapt the AOL IP
Telephony Software, including any and all components (e.g.,
APIs, and the reference implementations for the SDK and APIs)
contained in the AOL IP Telephony Software necessary to
effectuate the provision of the AIM IP Telephony Services to
AIM users, and the use by end-users of the AIM IP Telephony
Services, in each case, in object code form only (except as
provided in Sections 10.1.2 and 10.2) in accordance with the
terms of this Agreement. To the extent reasonably requested by
AOL, N2P shall deliver the AOL IP Telephony Software
electronically to AOL.
10.1.2 SDK License. Within thirty (30) days from the
Effective Date, N2P shall provide AOL [****] with a software
development kit ("SDK"), and updates thereto during the Term,
which shall contain such object code (and/or source code, if
necessary) and/or other applicable technology, relating to the
AOL IP Telephony Software or otherwise, to the extent
reasonably necessary for AOL to integrate all of the Core
Premium Services within the AIM Client, and perform any and
all of its other obligations and exercise its rights under
this Agreement. Without limiting the provisions of Section
10.1.1, N2P agrees that AOL shall have the right to use, adapt
and copy, in any manner whatsoever, the components contained
in the SDK provided by N2P (e.g., object code) in connection
therewith. Notwithstanding the foregoing, in the event that
N2P does not provide AOL with such SDK within [****] of the
Effective Date, in addition to any other remedies AOL may
have, AOL shall have the right to terminate the exclusivity
with respect to all of the Core Premium Services. In addition
to the foregoing, AOL shall have the right to request, from
time to time during the Term, that N2P provide AOL with
additional SDKs which shall contain such source code (as
necessary), object code, and/or other applicable technology
necessary to allow AOL to integrate any and all additional AIM
IP Telephony Services (e.g., the Optional Services, and/or the
Expanded Services ) designated by AOL within the AIM Client.
In such event, N2P shall provide AOL with such additional
SDK(s) as the necessary technology becomes generally available
(following such request from AOL, which request shall contain
reasonable specificity of the technology needed from N2P by
AOL for such integration), and such additional SDK(s), and the
technology contained therein, shall be deemed through this
reference incorporated within the licenses granted to AOL in
this Section 10.1.2 and in Section 10.1.1.
10.1.3 Purpose of License. The foregoing license is
expressly intended to permit (and limited to permitting) AOL
to effectuate all of its rights and conduct all of the
business expressly contemplated hereunder, including
distributing the AIM IP Telephony Services
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EXECUTION VERSION
pursuant to the terms and conditions of this Agreement. Except
as set forth in this Section 10.1, Sections 10.2 and 12.1 or
as otherwise set forth in this Agreement (including, without
limitation, with respect to the AOL GUI), AOL acknowledges and
agrees that N2P and its licensors retain all rights, title and
interest in and to the AOL IP Telephony Software in both
object and source code forms, and, except pursuant to the
Source Code Escrow Agreement, or as otherwise set forth in
this Agreement, AOL shall not have any rights to use such code
licensed hereunder following termination of this Agreement
without N2P's consent. AOL shall not have any right under any
circumstances, or authorize any third party (which, for
avoidance of doubt, includes any Affiliate of AOL), to (i)
[****] the AOL IP Telephony Software (other than adaptation in
accordance with Sections 10.1.1, 10.1.2, or in connection with
AOL's integration obligations hereunder, or as otherwise
authorized by the Source Code Escrow Agreement or license
described in Section 10.2), (ii) [****], or otherwise [****]
the source code for or underlying algorithms, processes or
methods of the AOL IP Telephony Software that is provided in
object code form, or (iii) [****] the AOL IP Telephony
Software to any third party (other than as expressly provided
in this Agreement). All copies of the AOL IP Telephony
Software made hereunder shall include all proprietary notices
included on the copy provided by N2P, and AOL shall not
remove, deface or obscure or authorize to be removed, defaced
or obscured any of N2P's or its licensors' proprietary rights
notices on or in the AOL IP Telephony Software or on output
generated by the software; provided that the placement of such
notices, if any, in the AOL IP Telephony Software that are
visible in the user interface of such software shall be
subject to AOL's prior written approval, which approval will
not be unreasonably withheld. AOL agrees that any and all
copies of the AOL IP Telephony Software distributed to third
parties shall be pursuant to binding license agreements no
less restrictive or protective of N2P's rights than this
Section 10.1. AOL agrees that any material violation of this
Section 10.1 by AOL that is not cured by AOL within [****]
shall constitute a material breach of this Agreement. N2P
agrees to provide the AOL IP Telephony Software in object code
form (except as set forth in Sections 10.1.1, 10.1.2, 10.2 or
otherwise), including all required Documentation, to AOL as
and when needed for AOL to exercise its rights under this
Agreement. For the avoidance of doubt, the Parties acknowledge
that the AOL IP Telephony Software, may not be provided by N2P
to any third party.
10.2 Source Code License and Escrow.
10.2.1 Escrow Agreement. N2P and AOL will enter into
an escrow agreement (the "Source Code Escrow Agreement"),
containing terms and conditions subject to the mutual
agreement of the Parties, for the limited use by AOL of the
AOL IP Telephony Software in source code form (the "Source
Code") solely for the purposes of undertaking any activity
which N2P is obligated to perform or undertake hereunder and
fails to perform or undertake as required hereunder. The
Source Code Escrow Agreement shall provide that AOL shall be
entitled to a copy of the Source Code only upon the occurrence
of all of the following four (4) events (collectively, the
"Release Conditions"): (i) N2P's material breach of its
material obligations hereunder to provide, maintain or support
the AOL IP Telephony Software, which breach materially
adversely affects the AIM IP Telephony Services; (ii) AOL's
written notice to N2P detailing such material breach; and
(iii) N2P fails to cure such material breach within ninety
(90) days of receipt of such notice; or (iv) N2P's failure to
provide the SDK to AOL to AOL's reasonable satisfaction,
pursuant to Section 10.1.2. The license will not include any
right to [****] the Source Code to any third party without
N2P's prior written consent, and the Source Code Escrow
Agreement will contain provisions, reflective of the
sensitivity of the Source Code, to preclude the unauthorized
use or disclosure of the Source Code or information derived
therefrom. Promptly after execution of this Agreement, and in
any event within [****], N2P and AOL shall negotiate and enter
into the Source Code Escrow Agreement with Data Securities
International or another escrow holder acceptable to each
Party. The Source Code Escrow Agreement will contain
provisions for N2P to provide AOL with reasonable assistance
in understanding and using the Source Code upon occurrence of
the Release Conditions.
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<PAGE> 23
10.2.2 Limited Source Code License. To the extent
reasonably necessary for AOL to modify, develop, add, delete
or use any functionality or features of the AIM IP Telephony
Services in connection with the development of any Additional
AOL Modifications pursuant to Section 2.3.4, N2P shall provide
to AOL APIs or SDKs to the AOL IP Telephony Software so that
such Additional Modifications or other obligations under this
Agreement (e.g., Section 2.1) (whether developed by N2P, AOL
or any third party) can interoperate with (including use of
the principal functions of) the AOL IP Telephony Software;
provided, however, that, to the extent that such APIs or SDKs
are insufficient to enable such interoperability, N2P shall
either (i) modify, as promptly as commercially practicable,
the APIs or SDKs [****], the AOL IP Telephony Software or the
Additional Modifications to enable such interoperability, or
(ii) in the event that (a) N2P does not perform the work
described in clause (i) of this Section 10.2.2 as promptly as
commercially practicable or (b) elects not to perform such
work, provide to AOL portions of the Source Code for the AOL
IP Telephony Software (and grant a license) necessary to
permit AOL to modify the APIs, SDKs, or AOL IP Telephony
Software to enable such interoperability. If N2P elects to do
the modifications, it shall make the modifications as promptly
as is commercially reasonable. AOL's use of the Source Code
pursuant to this Section 10.2.2 will not include any right to
sublicense, transfer, assign, disclose or distribute the
Source Code to any third party without N2P's prior written
consent, and will be subject to mutually agreed provisions,
reflective of the sensitivity of the Source Code, to preclude
the unauthorized use or disclosure of the Source Code or
information derived therefrom.
10.2.3 Limits on Use. AOL's use of the Source Code
shall not exceed the narrow purpose set forth in Section
10.2.1 or Section 10.2.2.
10.3 Trademark License. Subject to the terms and conditions of this
Agreement, N2P will be entitled to use the following trade
names, trademarks, and service marks of AOL: the "AOL(TM)"
trademark and service mark and other trademarks and service
marks relating specifically to one or more of the AIM IP
Telephony Services, provided that AOL has approved in writing
the use of each such other trademarks or service marks
(collectively, the "AOL Marks"). Subject to the terms |
